{"id":13057,"date":"2022-02-14T14:06:06","date_gmt":"2022-02-14T14:06:06","guid":{"rendered":"https:\/\/mailinvest.blog\/index.php\/2022\/02\/14\/law-firm-sues-us-citizen-and-immigration-service-after-it-tries-to-claw-back-docs-obtained-legally-thru-a-foia-request\/"},"modified":"2022-02-14T14:06:06","modified_gmt":"2022-02-14T14:06:06","slug":"law-firm-sues-us-citizen-and-immigration-service-after-it-tries-to-claw-back-docs-obtained-legally-thru-a-foia-request","status":"publish","type":"post","link":"https:\/\/mailinvest.blog\/index.php\/2022\/02\/14\/law-firm-sues-us-citizen-and-immigration-service-after-it-tries-to-claw-back-docs-obtained-legally-thru-a-foia-request\/","title":{"rendered":"Law Firm Sues US Citizen And Immigration Service After It Tries To Claw Back Docs Obtained Legally Thru A FOIA Request"},"content":{"rendered":"

<\/a>\n<\/p>\n

\n

from the how-it-actually-works-v.-how-USCIS-wishes-it-worked<\/i> dept<\/h3>\n

\nOnce someone legally obtains documents from a government entity through a public records request, the government simply cannot demand to have them returned just because it screwed up when it fulfilled the request.\n<\/p>\n

\nThat unalterable fact hasn’t stopped government agencies from trying (or even [temporarily] succeeding). The NYPD botched its handling of a public records request twice<\/em>, handing out information it didn’t want to disclose to facial recognition researchers on two separate occasions. Both times, it tried to get a court to help it demand the mistakenly released information be returned. One request was granted<\/a> (then rescinded). The second time the NYPD screwed up it didn’t even bother<\/a> to see if a court would oblige it twice.\n<\/p>\n

\nUS Citizenship and Immigration Services (USCIS) is being sued for trying to do exactly this same thing. It fulfilled FOIA requests pertaining to Hoppock Law Firm clients, sending the firm the “alien files” compiled by the agency. (h\/t National Security Counselors<\/a>)\n<\/p>\n

\nAt the time, the USCIS told Hoppock Law Firm it was aware it was over-fulfilling the request. From Hoppock Law’s lawsuit<\/a> [PDF] against USCIS:\n<\/p>\n

\n

\nIn the Determination Letter, defendant USCIS wrote that it was intentionally releasing portions of the records that would otherwise be considered \u201cexempt\u201d under the FOIA statute<\/strong> after discussion between agency personnel and a member of its staff. It purported to release this exempt material \u201cas a matter of administrative discretion.\u201d And it said that the released records may also include other \u201cdiscretionary releases of exempt information.\u201d<\/em>\n<\/p>\n

\nThese statements confirmed that even if portions of the records released were subject to any exemption under the FOIA, such release was intentional, not inadvertent.<\/em><\/strong>\n<\/p>\n<\/blockquote>\n

\nSeven months later, USCIS had a new Director of FOIA Operations. And Hoppock Law had a new letter from USCIS demanding the “return” of information the agency had already voluntarily released.\n<\/p>\n

\n

\nThe Demand Letter stated that, as for request number NRC2021092780, the USCIS had now decided that it had \u201cinadvertently released personally identifiable information of third parties and\/or law enforcement sensitive information.\u201d It did not identify what pages or portions of the release the defendants were now claiming to be exempt or address its previous statements that it was releasing exempt information on purpose, as a matter of administrative discretion.<\/em>\n<\/p>\n

\nThe Demand Letter did not identify any specific statutory exemption under the FOIA statute that the Defendants believed should apply to these records.<\/em>\n<\/p>\n

\nAlthough the request was for Plaintiffs\u2019 client\u2019s own A-file and the records released included only those found in the client\u2019s A-file, the Demand Letter said that \u201cimproper use\u201d of the records Plaintiffs received could \u201charm\u201d the individuals \u201cwhose information was mistakenly sent.\u201d<\/em>\n<\/p>\n<\/blockquote>\n

\nThe demand letter<\/a> [PDF] also hinted the law firm could be subject to criminal charges if it did not immediately comply. The letter claimed that any “any use or disclosure” of information (information not specified in the letter) might “impede or interfere with law enforcement activities.” That’s called obstruction when the feds are bringing charges. And like any federal charge, it’s serious<\/a> and can result in lengthy sentences.\n<\/p>\n

\nThe letter went on to demand compliance by January 18, 2022, which would be the same day the law firm received the letter. On January 19, the law firm responded, asking USCIS to identify which FOIA request this demand letter covered and noted that it needed other information from the agency if it was even going to begin complying with its demands, including identification of every person and entity the documents might have been shared with.\n<\/p>\n

\nDespite the implicit threat of criminal charges and the demand for immediate action, the law firm’s questions have yet to be answered. To prevent it from being accused of federal crimes or improper dissemination of sensitive information, the law firm is suing USCIS, seeking an order that would strictly define what the law firm is obligated to do in response to this letter, especially given its implication of criminal charges.\n<\/p>\n

\nAnd it points out USCIS has no legal right to demand the things it’s demanding.\n<\/p>\n

\n

\nThe FOIA statute includes no authority for the responding agency to demand that a requester return records it has disclosed under the FOIA or to furnish information to the agency about who has been provided access to those records.<\/em>\n<\/p>\n

\nEven if there were some implied claw-back power in the FOIA statute, it would not apply to records the agency has intentionally disclosed, as it said explicitly here in the June 2021 disposition letter.<\/em>\n<\/p>\n<\/blockquote>\n

\nBecause of that, the law firm is also seeking declaratory judgment stating that the demand letter violates FOIA law and that the law firm is under no obligation to comply with an extremely belated letter that, in effect, orders the firm to disclose the names of others who’ve viewed the documents and any attorney-client privileged communications compliance with the letter might reveal.\n<\/p>\n

\nThe law firm should prevail. FOIA law simply does not work this way. And USCIS’s earlier statements that it knew it was providing information normally considered exempt from disclosure shows the agency was fully aware of what it was handing over to the law firm. A change at the top of the FOIA org chart doesn’t suddenly make all of the agency’s past public records actions null and void. And it sure as shit doesn’t change how this law works.\n<\/p>\n

\n
\"Hide<\/p>\n
\n

Thank you for reading this Techdirt post. With so many things competing for everyone\u2019s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.<\/p>\n

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites \u2014 especially a site like ours that is unwilling to pull punches in its reporting and analysis.<\/p>\n

While other websites have resorted to paywalls, registration requirements, and increasingly annoying\/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support<\/a>. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise \u2014 and every little bit helps. Thank you.<\/p>\n

\u2013The Techdirt Team<\/p>\n<\/div>\n<\/div>\n<\/div>\n

Filed Under: foia<\/a>, transparency<\/a>, uscis<\/a>
Companies: hoppock law firm<\/a><\/p>\n<\/div>\n